carucel investments v. gogo et. al

8/13/2019 Carucel Investments v. Gogo Et. Al.

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No._____________

Carucel Investments, L.P., a Delawarelimited partnership,

Plaintiff,

v.

Gogo, Inc., a Delaware corporation, GogoLLC, a Delaware limited liability company,and Aircell Business Aviation ServicesLLC, a Delaware limited liability company,

Defendants.

JURY TRIAL DEMANDED

COMPLAINT FOR PATENT INFRINGEMENT

Plaintiff Carucel Investments, LP (Carucel) states the following as its Complaint

against Defendants Gogo, Inc., Gogo LLC, and Aircell Business Aviation Services LLC

(collectively Gogo):

I.

NATURE OF THE ACTION

1. This is an action for patent infringement arising under the Patent Laws of theUnited States, 35 U.S.C. 1, et seq.

2. Carucel is informed and believes, and thereupon alleges, that Gogo has been andis infringing, contributing to the infringement of, and/or actively inducing others to infringe

claims of U.S. Patent No. 7,221,904 (the 904 Patent), U.S. Patent No. 7,848,701 (the 701

Patent), U.S. Patent No. 7,979,023 (the 023 Patent), and U.S. Patent No. 8,463,177 (the


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177 Patent) (collectively the "Asserted Patents").

II.

THE PARTIES

3. Plaintiff Carucel is a Delaware limited partnership with its principal place ofbusiness at 3121 N.E. 51

stStreet, #401, Fort Lauderdale, Florida 33308.

4. Carucel is informed and believes, and thereupon alleges, that Defendant Gogo,Inc. is a Delaware corporation with its principal place of business at 1250 N. Arlington Heights

Road, Suite 500, Itasca, Illinois 60143.

5. Carucel is informed and believes, and thereupon alleges, that Defendant GogoLLC is a Delaware limited liability company with its principal place of business at 1250 N.

Arlington Heights Road, Suite 500, Itasca, Illinois 60143.

6. Carucel is informed and believes, and thereupon alleges, that Defendant AircellBusiness Aviation Services LLC is a Delaware limited liability company with its principal place

of business at 1250 N. Arlington Heights Road, Suite 500, Itasca, Illinois 60143.

7. Carucel is informed and believes, and thereupon alleges, that Defendant GogoInc. is a holding company that does business through its two indirect operating subsidiaries,

Defendant Gogo LLC and Defendant Aircell Business Aviation Services LLC.

8. Upon information and belief, Gogo has substantial contacts and transactssubstantial business, either directly or through its agents, on an ongoing basis in this judicial

district and elsewhere in the United States.

9. Unless specifically stated otherwise, the acts complained of herein werecommitted by, on behalf of, and/or for the benefit of Gogo.

III.

JURISDICTION AND VENUE

10. This action arises under the Patent Laws of the United States, 35 U.S.C. 1, etseq., including 35 U.S.C. 271. This Court has subject matter jurisdiction pursuant to 28 U.S.C.

1331 and 1338(a).


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11. This Court has personal jurisdiction over Gogo because Gogo has substantialcontacts and conducts business in the State of Florida and in this judicial district, and has been

infringing, contributing to the infringement of and/or actively inducing others to infringe claims

of the Asserted Patents in Florida and elsewhere. This Court also has personal jurisdiction over

Gogo because Gogo has committed a tortious act causing injury within Florida, namely, the acts

of infringement, contributory infringement, and/or inducement of infringement alleged herein.

12. Venue is proper in this Court pursuant to 28 U.S.C. 1391(b), 1391(c), 1391(d)and/or 1400(b) because a substantial part of the events giving rise to Carucel's claims occurred in

the Southern District of Florida and because Gogo is subject to personal jurisdiction in the

Southern District of Florida.

IV.

THE PATENTS IN SUIT

13. On May 22, 2007, the 904 Patent, entitled Mobile Communication System withMoving Base Station, was duly and legally issued by the United States Patent and Trademark

Office to the named inventor Charles D. Gavrilovich, after a full and fair examination. A true

and correct copy of the 904 Patent is attached as Exhibit A to this Complaint.

14. The 904 Patent is valid and enforceable.15. On December 7, 2010, the 701 Patent, also entitled Mobile Communication

System with Moving Base Station, was duly and legally issued by the United States Patent and

Trademark Office to the named inventor Charles D. Gavrilovich, after a full and fair

examination. A true and correct copy of the 701 Patent is attached as Exhibit B to this

Complaint.

16. The 701 Patent is valid and enforceable.17. On July 12, 2011, the 023 Patent, also entitled Mobile Communication System

with Moving Base Station, was duly and legally issued by the United States Patent and


examination. A true and correct copy of the 023 Patent is attached as Exhibit C to this


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Complaint.

18. The 023 Patent is valid and enforceable.19. On June 11, 2013, the 177 Patent, also entitled Mobile Communication System

with Moving Base Station, was duly and legally issued by the United States Patent and


examination. A true and correct copy of the 177 Patent is attached as Exhibit D to this

Complaint.

20. The 177 Patent is valid and enforceable.21. Carucel is the assignee and owner of all rights, title, and interest in and to the

Asserted Patents, including the right to assert all causes of action arising under the Asserted

Patents and all rights to any remedies for infringement.

V.

GOGOS ACTS OF INFRINGEMENT

22. On or about April 30, 2012, Carucel sent a letter and copies of the 904, 701,and023 Patents to Gogo addressed to Gogos Senior Vice President and General Counsel. The

letter and copies of the patents were received by Gogo on May 2, 2012. A true and correct copy

of that letter is attached as Exhibit E to this complaint. Gogo therefore had actual and full

knowledge of at least the 904, 701,and 023patents no later than May 2, 2012. The letter

received by Gogo also refers to a pending continuation application which subsequently issued

as the 177 patent. Accordingly, Gogo had actual and full knowledge of the patent application

that issued as the 177 patent.

23. Carucel is informed and believes, and thereupon alleges, that Gogo has made,used, sold, imported and/or offered for sale, and/or continues to make, use, sell, import and/or

offer for sale, products and services in the United States that fall within the scope of one or more

claims of each of the Asserted Patents. These infringing systems and services include, but are

not limited to, airborne in-flight internet connectivity systems and services and other in-flight

voice and data communications products and services, such as ATG-4000, ATG-5000, Gogo


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Inflight Service, Gogo BizService, Aircell Mobile Broadband Network, Cabin

Telecommunications Router (CTR), Gogo Vision, and ATG-4 system, among others (the

Accused Products and Services).

24. Without license or authorization, Gogos making, use, sale, offers for sale, and/orimportation of the Accused Products and Services in the United States constitute acts of direct

infringement of the Asserted Patents.

25. Gogo is contributorily infringing, will induce, is inducing and has inducedinfringement of one or more claims of each of the Asserted Patents by offering to sell and selling

current and preceding versions of the Accused Products and Services, to customers, buyers,

sellers, users, and others who directly infringe the Asserted Patents.

26. Carucel is informed and believes, and thereupon alleges, that Gogo has sold oroffered to sell its Accused Products and Services to third parties, including but not limited to, for

example, American Airlines, Delta Air Lines, United Airlines, US Airways, and Continental

Airlines, among others, who incorporate the Accused Products and Services into their own

products and services. Upon information and belief, those third parties in turn have made, used,

sold, offered for sale, and/or imported and/or continue to make, use, sell, offer for sale, and/or

import their own products and services in the United States. These activities undertaken by the

third parties constitute acts of direct infringement of the Asserted Patents. For example, Carucel

is informed and believes that one or more of the third parties offer access to wireless internet

service to passengers on domestic flights. In addition, Carucel is informed and believes that one

or more of the third parties infringe the patents by employing persons that access the wireless

internet service with wireless point-of-sale devices to perform credit card and debit card

transactions.

27. Infringement of each Asserted Patent can be found through, among other things,operation of the Accused Products, which are not staple articles or commodities of commerce

suitable for substantial non-infringing use, in an ordinary and intended manner.


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28. Despite Gogos knowledge of the Asserted Patents, and Gogos knowledge oftheir validity and infringement by the Accused Products and Services, on information and belief,

Gogo has continued and is continuing to sell and offer to sell the Accused Products and Services

to third parties with the object of promoting their use to infringe, as shown by Gogos clear

expression and other affirmative steps taken to foster infringement by their customers. For

instance, on information and belief, Gogo provides documents related to the Accused Products

and Services, such as datasheets, product manuals or other literature, to third parties. In an

example, GogosAircell Solutions Guide For Dealers shows diagrams and identifies Gogo

equipment for installation on aircraft where the equipment includes two third-party antennas

connected to GogosATG-4000, which is connected to GogosCTR to form an infringing

system.

29. On information and belief, Gogo knew or should have known that its equipment,for example, the ATG-4000 and CTR, is especially adapted or made for use to infringe the

Asserted Patents.

30. As a result, Gogo has contributed to and continues to contribute to theinfringement of the Asserted Patents.

31. Carucel is informed and believes, and thereupon alleges, that, by its sales and/oroffers for sale of the Accused Products and Services to third parties, Gogo also has induced and

continues to induce acts by third parties that Gogo knew or should have known would constitute

direct infringement of the Asserted Patents. Gogo actively induces infringement of the Asserted

Patents by designing the Accused Products and Services to be capable of infringement and by

deliberately promoting and encouraging the use of its products and services by the third parties

in ways that infringe the Asserted Patents.

32. For example, Gogo documents such as the Aircell Solutions Guide For Dealershave directly induced Gogos customers to use the Accused Products and Services in a manner

that infringes each of the Asserted Patents.


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33. Carucel is entitled to recover from Gogo the actual damages it sustained as aresult of Gogo's wrongful acts alleged herein under 35 U.S.C. 284 in an amount to be proven at

trial, together with interest and costs.

34. Carucel is informed and believes, and thereupon alleges, that Gogo's infringementof the Asserted Patents as set forth herein has been and is willful, deliberate and in wanton

disregard of Carucel's patent rights, and Carucel is therefore entitled to increased damages up to

three times the amount of actual damages and attorneys' fees, pursuant to 35 U.S.C. 284, 285.

35. Gogo's infringement of the Asserted Patents will continue to damage Carucel,causing irreparable harm for which there is no adequate remedy at law, unless it is enjoined by

this Court.

VI.

CLAIMS FOR RELIEF

COUNT I

(Infringement of U.S. Patent No. 7,221,904

Under 35 U.S.C. 271, et. seq.)

36. Carucel incorporates by reference and realleges paragraphs 1 through 35 above asif fully set forth here.

37. Carucel is informed and believes, and thereupon alleges, that Gogo: (i) hasinfringed and continues to infringe claims of the 904 Patent, literally and/or under the doctrine

of equivalents, by making, using, offering to sell, selling (directly or through intermediaries),

and/or importing the Accused Products and Services in this district and elsewhere in the United

States, and/or (ii) has contributed and continues to contribute to the literal infringement and/or

infringement under the doctrine of equivalents of claims of the 904 Patent, and/or (iii) has

actively induced and continues to actively induce others to infringe claims of the 904 Patent,

literally and/or under the doctrine of equivalents, in this district and elsewhere in the United

States.


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COUNT II








infringement under the doctrine of equivalents of claims of the 701 Patent in this district and

elsewhere in the United States, and/or (iii) has actively induced and continues to actively induce

others to infringe claims of the 701 Patent, literally and/or under the doctrine of equivalents, in

this district and elsewhere in the United States .

COUNT III












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this district and elsewhere in the United States.

COUNT IV











this district and elsewhere in the United States.

VII.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff Carucel asks this Court to enter judgment in its favor against

Gogo and grant the following relief:

A. An adjudication that Gogo has infringed and continues to infringe the Asserted

Patents as alleged above;

B. An adjudication that Gogo has contributed and continues to contribute to the

infringement of the Asserted Patents as alleged above;

C. An adjudication that Gogo has induced the infringement and continues to induce

the infringement of the Asserted Patents as alleged above;

D. An accounting of all damages sustained by Carucel as a result of Gogos acts

of infringement of the Asserted Patents;


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E. An award to Carucel of actual damages adequate to compensate Carucel for

Gogos acts of patent infringement, together with prejudgment and post judgment interest;

F. An award to Carucel of enhanced damages, up to and including trebling of

Carucels damages pursuant to 35 U.S.C. 284 for Gogos willful infringement of the Asserted

Patents;

G. An award of Carucels costs of suit and reasonable attorneysfees pursuant to 35

U.S.C. 285 due to the exceptional nature of this case, or as otherwise permitted by law;

H. A grant of a permanent injunction pursuant to 35 U.S.C. 283, enjoining Gogo,

and each of its agents, servants, employees, principals, officers, attorneys, successors, assignees,

and all those in active concert or participation with Gogo, including related individuals and

entities, customers, representatives, OEMs, dealers, and distributors from further acts of (1)

infringement, (2) contributory infringement, and (3) active inducement to infringe with respect to

the claims of the Asserted Patents;

I. Any further relief that this Court deems just and proper.

VIII.

JURY DEMAND

Plaintiff Carucel requests a jury trial on all issues triable to a jury in this matter.


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Dated: February 13, 2014 Respectfully submitted,

s/Oliver Alan RuizJohn C. Malloy, III

Florida Bar Number: 964220Email:[email protected] & Malloy, P.L.2800 S.W. 3rd AvenueMiami, Fl 33129Telephone: 305.858.8000Facsimile: 305.858.0008

Oliver A. RuizFlorida Bar Number: 524786Email:[email protected] & Malloy, P.L.2800 S.W. 3rd Avenue

Miami, Fl 33129Telephone: 305.858.8000Facsimile: 305.858.0008

Michael K. Lindsey (Pro hac vice pending)James M. Sarnecky (Pro hac vice pending)Gavrilovich, Dodd & Lindsey, LLP4660 La Jolla Village Dr.Suite 750San Diego, CA 92122Tel: 858.869.2201Fax: 858.458.9986Attorneys for PlaintiffCarucel Investments, L.P.

Attorneys for PlaintiffCarucel Investments, L.P.
mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]

carucel investments v. gogo et. al

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